Abandonment or Amendment of Alternative Criminal Charges

An amendment is an alteration to the face of the charging instrument affecting its substance. Eastep v. State, 941 S.W.2d 130, 132 (Tex. Crim. App. 1997). In order to ensure the accused of his constitutional right to be informed of the nature of the charges against him, there must be an actual, physical alteration of the charging instrument. Id. at 132; Ward v. State, 829 S.W.2d 787, 793 (Tex. Crim. App. 1992). An amendment to the charging instrument is subject to the limitations set forth in TEX. CODE CRIM. PROC. ANN. art. 28.10 (Vernon 1989). Article 28.10 provides (a) After notice to the defendant, a matter of form or substance in an indictment or information may be amended at any time before the date the trial on the merits commences. on the request of the defendant, the court shall allow the defendant not less than 10 days, or a shorter period if requested by the defendant, to respond to the amended indictment or information. (b) a matter of form or substance in an indictment or information may also be amended after the trial on the merits commences if the defendant does not object. (c) An indictment or information may not be amended over the defendant's objection as to form or substance if the amended indictment or information charges the defendant with an additional or different offense or if the substantial rights of the defendant are prejudiced. An abandonment, on the other hand, although accomplished by physical alteration, does not affect the substance of the charging instrument. Eastep, 941 S.W.2d at 133. Eastep recognized three situations in which altering the charging instrument constitutes an abandonment, rather than an amendment: (1) abandonment of one or more of the alternative means by which an offense may be committed; (2) abandonment of an allegation if the effect is to reduce the prosecution to a lesser included offense; (3) abandonment of surplusage. Eastep, 941 S.W.2d at 135. In the Hilton v. State, 879 S.W.2d 74 (Tex. App.-Houston [14th Dist.] 1994, pet. ref'd) case, the State attempted to alter the indictment, which had previously charged the defendant with the theft of "two facsimile machines" to now charge him with theft of "one facsimile machine." The Fourteenth Court of Appeals ruled that this was an amendment subject to the restrictions of Article 28.10, and not, as argued by the State, simply an abandonment of one facsimile machine from the indictment. The court said, "We note that the State not only deleted the words 'two facsimile machines, 'but substituted the words 'one facsimile machine.' We find that the State's action in changing the words in the indictment was an 'amendment' within the meaning of Article 28.10." Hilton, 879 S.W.2d at 78-79.